The difference between a sua sponte order and an order upon a motion made upon notice may be slim at times. In Meyers v Becker & Poliakoff, LLP 2022 NY Slip Op 01246 Decided on February 24, 2022 Appellate Division, First Department the motion was discussed at a preliminary conference and defendants were told not to make the motion. The difference is somewhat vague.
What is clearer is that the Appellate Division found substance in the complaint. “In any case, the verified complaint states a cognizable claim for legal malpractice, including that defendant’s negligence proximately caused plaintiff nonspeculative damages. The complaint alleges that defendant advised plaintiff to execute a consent order with the Connecticut Department of Banking, which required him to withdraw his registration as a broker-dealer agent in Connecticut and not to reapply for registration there for three years. This resulted in his being barred from the securities industry under the Securities Exchange Act of 1934 § 3(a)(39) (15 USC § 78c[a]; see 15 USC § 78o[b][H][i]). SEC and FINRA rulings decided before plaintiff entered into the consent order held that a three-year suspension by a state authority would result in a statutory disqualification and a bar from the securities industry. Thus, the complaint sufficiently alleges that but for defendant’s advice to sign the consent order, he would not have been barred from working in the securities industry.
Therefore, at this stage, dismissal was not warranted under CPLR 3211(a)(7), or under CPLR 3211(a)(1), as defendant failed to provide documentary evidence that “conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 ; Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014])”